In most jobs, workers who work more than 40 hours a week must be paid overtime. But sometimes employers do not pay overtime, saying that their workers are “exempt,” “salaried,” “management,” “commission only,” or “independent contractors.”
If you are working overtime hours but not getting overtime pay, you may have a claim for unpaid wages and additional damages, even if your employer says you are not eligible for overtime.
We help workers in New Jersey and New York find out whether they may have an unpaid overtime claim. We also look at whether the same pay practices may have affected multiple workers at the same company.
The consultation is free.
We usually handle overtime claims on a contingency-fee basis. That means that, if the firm agrees to represent you, you do not pay attorneys’ fees up front. Instead, the firm is paid a percentage of the amount eventually recovered for you, as set forth in our written fee agreement.
If no money is ever recovered for you, you will not owe us any attorneys’ fees.
Employers sometimes use job titles or pay arrangements that make workers believe they are not entitled to overtime. But whether someone is entitled to overtime usually depends on the actual facts of the job, including the work performed, the hours worked, how the worker is paid, and the level of control the employer has over the work.
A worker may have overtime rights even if the employer says the worker is:
Every situation is different. The important question is not just what the employer calls your position with the company, but whether you are legally entitled to overtime based on the facts.
The Salvo Law Firm PC reviews potential unpaid overtime claims involving issues such as:
Some employees are exempt from overtime, but most are not. A job title alone does not decide whether an employee is exempt. Calling someone a “manager,” “administrator,” or “professional” does not automatically make the person exempt from overtime.
For example, a worker may be given a management title but spend most of the day performing the same work as non-management employees. Another worker may be paid a salary but still have little control over job duties, schedule, or decision-making. In those situations, it may be worth reviewing whether the worker was properly denied overtime.
Some workers are told they are independent contractors and therefore are not entitled to overtime. However, a company cannot necessarily avoid paying overtime simply by calling a worker an independent contractor or issuing a 1099.
Whether someone is truly an independent contractor depends on the working relationship. Relevant issues may include who controls the work, whether the worker is operating an independent business, whether the worker can make a profit or suffer a loss, who provides the tools or equipment, whether the worker can work for others, and how integrated the work is into the company’s business.
If you are treated like an employee but paid like an independent contractor, you may have legitimate questions about whether you should have been paid overtime.
Overtime is usually calculated based on hours worked in a workweek. In most cases, that means hours over 40 in a single week. An employer generally cannot avoid overtime by averaging hours over multiple weeks.
For example, if a worker works 50 hours one week and 30 hours the next week, the employer generally cannot average those two weeks together and say the worker worked 40 hours per week and so is not entitled to overtime. Rather, the employer would be required to pay the worker for 10 hours of overtime.
If a worker wins an unpaid overtime claim, the recovery may include more than the overtime wages that should have been paid in the first place.
Depending on the facts and the applicable law, an overtime claim may include, in addition to unpaid overtime wages:
Because wage claims have time limits, workers who believe they may be owed overtime should not wait too long to find out for sure if they have been underpaid.
Workers should not be fired, punished, threatened, disciplined, demoted, or mistreated because they ask about overtime pay or complain that they were not paid correctly.
If an employer fires a worker, cuts hours, changes the worker’s schedule, reduces responsibilities, starts writing the worker up, or otherwise treats the worker badly after the worker asks about overtime, that may raise a separate retaliation issue which could then lead to additional damages.
Sometimes an overtime issue affects more than one worker. For example, a company may classify an entire group of workers as “exempt,” treat multiple workers as “independent contractors,” pay the same day rate or shift rate to many workers, or follow a companywide practice of not properly paying overtime after 40 hours.
The Salvo Law Firm PC will review whether your unpaid overtime claim appears to be limited to just you, or may also be part of a broader pay practice affecting others.
Workers should not be fired, punished, threatened, disciplined, demoted, or mistreated because they ask about overtime pay or complain that they were not paid correctly.
If an employer fires a worker, cuts hours, changes the worker’s schedule, reduces responsibilities, starts writing the worker up, or otherwise treats the worker badly after the worker asks about overtime, that may raise a separate retaliation issue which could then lead to additional damages.
Many workers do not complain about unpaid overtime while they are employed. Some are worried about retaliation. Others assume the employer must know the law. Some are told that everyone in the position is paid in the same way and that a worker can “take it or leave it.”
You do not necessarily lose your rights just because you did not complain at the time. If you worked overtime and were not paid properly, it may be worth having your situation reviewed.
If you would like to ask about a potential unpaid overtime claim in New Jersey or New York, please complete the Contact Form below. A member of the firm will then contact you to discuss your situation.
Take a moment to fill out this brief form to tell us more about your case and we will reach out to you at our earliest convenience.
